Authored By: DANNY NKADIMENG
University of South Africa
Introduction
The judiciary in South Africa, which forms an integral part of the country’s constitutional democracy, still faces the challenge of transformation, not only along the lines of race and gender, but also in ensuring that it reflects the diversity of society. A notable deficiency in the makeup of the judiciary is the under-representation of persons with disabilities, which raises important questions about the inclusiveness of the selection process and the definition of judicial fitness. This article seeks to explore the hypothesis that, despite an elaborate constitutional and legislative framework aimed at equality and non-discrimination, entrenched structural problems and a limited definition of judicial fitness obstruct the appointment of suitably qualified persons with disabilities as judges in South Africa.
Legal Framework
South Africa’s commitment to equality and non-discrimination is found in section 9 of the Constitution of the Republic of South Africa, 1996 (the Constitution), which provides that no person may be unfairly discriminated against on various grounds, including disability.1 This obligation is amplified by the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA), whose purpose is to prevent and prohibit unfair discrimination and to promote equality.2 In the employment context, the Employment Equity Act 55 of 1998 (EEA) imposes an obligation to take affirmative action to ensure the equitable representation of designated groups,3 including persons with disabilities, in all occupational categories.4
Internationally, South Africa is a party to the United Nations Convention on the Rights of Persons with Disabilities (CRPD). The Convention commits States Parties to protecting the right of persons with disabilities to employment by preventing discrimination and providing reasonable accommodation.5 In relation to access to justice, article 13 of the CRPD requires States Parties to guarantee that persons with disabilities have effective access to justice, including through procedural and age-appropriate accommodations.6 Although the CRPD does not expressly address judicial appointments, its core values of non-discrimination and participation apply directly to the composition of the judiciary.
Domestically, the Judicial Service Commission (JSC), established under section 178 of the Constitution, plays a central role in judicial appointments: it advises the President on the appointment of judges and conducts interviews of candidates.7 In doing so, the JSC is expected to take into account the need for the judiciary to reflect broadly the racial and gender composition of South Africa.8
Case Law and Institutional Analysis
Although there is little South African case law dealing directly with the appointment of judges with disabilities, the jurisprudence on equality and reasonable accommodation more generally is critical to the question. The Constitutional Court has consistently emphasised the transformative character of the Constitution, in that equality requires addressing historical injustices and systemic obstacles.9 In MEC for Education, KwaZulu-Natal and Others v Pillay and Others, the Constitutional Court emphasised the significance of reasonable accommodation as an integral part of equality.10 The same principle applies to persons with disabilities, who are entitled to necessary and appropriate modifications and adjustments that do not impose an undue or disproportionate burden, where these are needed in a particular case to enable them to enjoy and exercise human rights on an equal basis with others.11
Despite the JSC’s efforts to ensure diversity in relation to race and gender, its present institutional approach to inclusion seems to fall short in respect of persons with disabilities. The interview process, for example, may fail to account for the needs of applicants with different levels of disability. Another problem is that the concept of “judicial fitness”, which forms part of the selection process, may assume that a physically able individual with full sensory capacity is the best choice for a judge, disregarding the possibility of using technology that could help an applicant with a disability perform judicial duties effectively. Moreover, the lack of available data on the number of judicial applicants and appointees with disabilities makes it impossible to assess the problem or to measure progress towards addressing it.
Critical Analysis and Argument
It is argued that the existing model, although sound on paper, falters in its application to disability in the context of judicial appointments. The constitutional mandate of the JSC, to have regard to the need for a judiciary that will “reflect broadly the racial and gender composition of South Africa”,12 must be read widely to mean that disability should be taken into account as an important factor of diversity. Otherwise, the process will work against the transformative project of the Constitution, which aims to establish a society in which equality and respect for human dignity prevail.13 The lack of judges with disabilities not only undermines the diversity of views in the judiciary but also conveys the impression that persons with disabilities are not capable of holding such office.
“Reasonable accommodation” is key to overcoming these hurdles. It entails not only making physical changes but also rethinking the requirements of judicial office and questioning stereotypical views of what it means to be a “competent” judge. For instance, a visually impaired individual, with the necessary technological means, may possess superior analytical and legal skills. Likewise, a mobility-impaired person may preside over trials without difficulty in an accessible courtroom and chambers. The emphasis should therefore be placed on ability rather than disability, supported by the necessary accommodations. Indirect discrimination may occur where such measures are not undertaken in good faith. It is incumbent upon the JSC, being constitutionally created, to break down these barriers and to create an environment in which persons with disabilities can compete for judicial office on merit.
Conclusion
A truly transformed and representative South African judiciary is possible only with the participation of persons with disabilities. Although the constitutional and legislative framework exists, systemic barriers, the absence of reasonable accommodation, and limiting views of the fitness of persons with disabilities for judicial office continue to hinder their appointment. This article makes the case for an expansive approach by the JSC to its constitutional mandate, together with the implementation of reasonable accommodation, in order to change assumptions about the abilities of persons with disabilities to serve as judges. It is therefore recommended that the JSC formulate and publish a policy on disability inclusion in judicial appointments and include reasonable accommodation measures in it.
Footnote(S):
1 Constitution of the Republic of South Africa, 1996, s 9(3)
2 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 2.
3 Employment Equity Act 55 of 1998, s 15.
4 Employment Equity Act 55 of 1998, s 15(2)(d).
5 United Nations Convention on the Rights of Persons with Disabilities (2006), art 27
6 United Nations Convention on the Rights of Persons with Disabilities (2006), art 13.
7 Constitution of the Republic of South Africa, 1996, s 178(1).
8 Constitution of the Republic of South Africa, 1996, s 174(2).
9 President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC) para 41.
10 MEC for Education, KwaZulu-Natal and Others v Pillay and Others 2008 (1) SA 474 (CC) para 73.
11 United Nations Convention on the Rights of Persons with Disabilities (2006), art 2 (definition of reasonable accommodation).
12 Constitution of the Republic of South Africa, 1996, s 174(2).
13 Constitution of the Republic of South Africa, 1996, Preamble.
Bibliography
Table of Cases
MEC for Education, KwaZulu-Natal and Others v Pillay and Others 2008 (1) SA 474 (CC).
President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC).
Table of Legislation
Constitution of the Republic of South Africa, 1996.
Employment Equity Act 55 of 1998.
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
International Instruments
United Nations, Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3.
